The law on the enterprises' righr to equal treatment in vietnam

1 2 ministry of education &training ministry of justice ha noi university ®o thi kim tien the law on the enterprises' righr to equal treatment in vietnam Speciality : Economic Law Code : 62 38 01 07 ABTRACT OF DOCTORAL DISSERTATION OF JURISPRUDENCE Ha noi - 2014 3 4 The dissertation is completed at Hanoi Law University Supervisor: Assoc. Prof. Dr. Duong Dang Hue Reviewer 1: Prof. Dr. Nguyen Thi Mo Reviewer 2: Assoc. Prof. Dr. Nguyen Minh Man Reviewer3: Dr. Dong Ngoc Ba The thesis is protected at the Council level thesis dot School, meeting at Hanoi Law University. The last hours, days, months, 2014. Thesis can be found at the National Library and the Library of Hanoi Law University THE AUTHOR'S PUBLISHED WORKS RELEVANT TO THE DISSERTATION 1. Do Thi Kim Tien (2011), "To make to leading role of the state sector more transparent to promote economic growth", State Management,, (184), Pp. 42-46. 2. Do Thi Kim Tien (2013), " Major issues of equality among enterprises", Inspectorate, (9), Pp. 17-19. 3. Do Thi Kim Tien (2013), "Building equal market economic institution in consistence with the leading role of the state sector", Legislative Research, 12(244), Pp. 7-12, 29. 4. Do Thi Kim Tien (2013), " Reality and causes of inequality among Viettnamese businesses", People's Court, (18),Pp. 10-14. 5. Do Thi Kim Tien (2013), "Improving the legislation to ensure equality among Vietnamese enterprises, ", Magazine of Democracy & Law, (258), Pp. 39-43. 5 6 INTRODUCTION 1. Research rationale Most countries opt for the model of market economy to take advantage of the law of competition as an engine for economic development. The precondition for smooth operation of the law of competition is to ensure free and equal competition among business entities, including enterprises, to facilitate business operation on their own capacity and remove ailing enterprises as a way to make the economy healthier for better development. Therefore, an environment for equal competition is both a principle and a universal value in a market economy. An unresolved problem in the development of socialist - oriented market economy in both theoretical and practical terms is how to promote the leading role the state sector while ensuring equal competition among state-owned enterprises (SOEs) and non – state businesses ad how to address the ailing operation of SOEs. In addition, thorough integration into the international market by Vietnam requires it to comply with the inherent market laws as well as treaties to which it has subscribed. Since the VI Party Congress, the Party has paid adequate attention to enterprises’ right to equal treatment in different sectors. This guideline has been institutionalized by the 1992 Constitution and laws. Contrary to the State goals, however, far from being relieved, inequality among enterprises tends to worsen. This problem becomes widespread and occurs in a variety of complicated forms and in all a stages: market entry, business operation, and dissolution, which has blocked investment and reduced economic growth. In response to economic requirements and international commitments, research into the legal framework and assessment of law enforcement are required to find out the causes and recommend solutions to enterprises’ right to equal treatment. This research assumes both theoretical and practical significance. Therefore, the topic “Improving legislations to promote enterprises’ right to equal treatment in Vietnam” is selected for the dissertation. 2. Research object and scope - Research object: The system of legislations and enforcement of laws on enterprises’ right to equal treatment in Vietnam. - Research scope: + Thorough research into the legal framework of Vietnam, and full and objective assessment of applicable legislations on enterprises’ right to equal treatment in Vietnam. + Research into enterprises covered by the Law on Enterprises 2005, exclusive of other types of businesses (cooperatives or individual businesses...) + Research into enterprises’ right to equal treatment from stages of business establishment and operation to dissolution, including: (i) equality in terms of business registration; (ii) equality in business operation; (iii) equality in business dissolution and bankruptcy. 3. Research objectives and missions The dissertation is aimed to form scientific foundation for the improvement of the legal framework to promote enterprises’ right to equal treatment in Vietnam. The dissertation assumes the following tasks: - Analyzing and clarifying theoretical issues on enterprises’ right to equal treatment, the significance for ensuring enterprises’ right to equal treatment. Assessing the extent to which the law has effects on ensuring enterprises’ right to equal treatment and elements that govern enterprises’ right to equal treatment. - Reviewing the entire legal system of Vietnam and conducting objective assessment of the strengths and weaknesses of legislations relevant to enterprises’ right to equal treatment. - Collecting data and information on the enforcement of laws relevant to enterprises’ right to equal treatment in Vietnam to form a basis to assess the strengths and weaknesses and finding out the underlying causes and effects of inequality among enterprises. - Raising comprehensive solutions to the improvement of legislations on enterprises’ right to equal treatment and institutional improvement to ensure enterprises’ right to equal treatment in Vietnam. 7 8 4. Theoretical basis and scientific hypothesis 4.1. Theoretical basis The research is conducted into improving legislations to promote enterprises’ right to equal treatment in Vietnam by referring to Marxist – Leninist dialectical materialism and Ho Chi Minh’s ideology as well as the Party’s guidelines and State laws on justice, equality, rule - of - law, market economy, Government to Business relation, ownership and sectors. In addition, the dissertation also refers to theories and views held by foreign and domestic economists, politicians and legalists as well as other countries’ laws on economic regime, market economy system, and Government to Business relation. 4.2. Research questions, scientific hypothesis and intended research findings Research questions 1 - What is equality and equality among enterprises? - Research hypothesis: Is equality among enterprises confused with equality among economic sectors. - Intended research findings: The dissertation will clarify the nature of equality among enterprises. Accordingly, equality among enterprises must satisfy two conditions concurrently: (i) to ensure the proportionate contribution and remuneration by businesses, violation and liability; and (ii) equal legal treatment without exception to all enterprises operating in the same conditions. Research questions 2 - What is enterprises’ right to equal treatment? - Research hypothesis: In the market economy, there exist a multitude of business entities, including enterprises. For viable operation, market players, including enterprises, should be treated equally by the law in the transaction with partners and the State (i.e. enjoying equal terms and equal standards in borrowing loans, treatment, tax liabilities…) Therefore, equality among enterprises is an inherent characteristics and requirement by the market economy. - Intended research findings: The dissertation clarifies and distinguishes enterprises’ right to equal treatment in legal terms from that in practical terms. Research questions 3 - Why does equality among enterprises signify? Why should enterprises’ right to equal treatment be ensured? - Research hypothesis: Freedom in business operation, competition and equality among enterprises are market principles, enabling the full operation of the law of competition to generate an engine for economic development. - Intended research findings: Demonstrating the relation between ensuring enterprises’ right to equal treatment and the improvement of market institution, fair competition. Assessing the significance for ensuring enterprises’ right to equal treatment. Research questions 4 - Does inequality exist among different enterprises in Vietnam? - Research hypothesis: Inequality exists among different enterprises in Vietnam. It generates negative socio - economic consequences. - Intended research findings: In the dissertation, review and assessment of the legal system and law enforcement will be conducted with aims to demonstrate the existence of inequality among enterprises in Vietnam. Research questions 5 - What cause inequality among enterprises in Vietnam? - Research hypothesis: There exists discriminatory treatment to enterprises by legislations as well as violation of laws relevant to enterprises’ right to equal treatment. - Intended research findings: Identifying regulations that induce inequality among enterprises and the causes of inequality among enterprises. Research questions 6 - What solutions can help ensure enterprises’ right to equal treatment in Vietnam? - Research hypothesis: Improving the legal framework providing for enterprises’ right to equal treatment and ensuring law enforcement on that matter to enable enterprises to operate in an equal environment. 9 10 - Intended research findings: (i) Proposal for elimination of legislations of discriminatory nature; revising ambiguous or poorly articulated regulations; enabling transparency of policies that offer preferential treatment, exemption or investment restraints; improving regulations as applied to SOEs; and (ii) improving institutions on the agency in charge; enhancing the capacity, service ethics, and corporate culture; transforming the attitude towards law observance and enforcement of laws relevant to enterprises’ right to equal treatment in Vietnam. 5. Methodology and research method On the basis of dialectical materialism and historical materialism and employing the approach to motion and development of the market economy in the new context, the dissertation has adopted methods of synthesis and analysis, comparative method, statistical method with focus on system method in order to learn and combine publicized research findings by organizations and researchers. The dissertation also conducts in – depth interview made available through face – to – face meetings with researchers for consultation for new ideas and facts. 6. Contributions and scientific significance The dissertation contributes following findings: Firstly, the dissertation has clarified the nature of equality among enterprises and enterprises’ right to equal treatment. At the same time, it has clarified how to ensure enterprises’ right to equal treatment in harmony with other preferential or discouraging treatment policies on business and investment. Secondly, the dissertation has come up to a comprehensive outlook by raising the concept and identifying the significance for ensuring enterprises’ right to equal treatment. It has assessed elements that govern enterprises’ right to equal treatment. Thirdly, the dissertation has stated the shortcomings of the existing legal framework relevant to enterprises’ right to equal treatment and major causes for inequality among enterprises in Vietnam. Fourthly, the dissertation has raised overall solutions to improve applicable legislations by learning and domesticating foreign policies to accommodate to the context of Vietnam in the course of integration and development. 7. Theoretical and practical significance Researching findings has helped clarify the theoretical aspect of jurisprudence on enterprises’ right to equal treatment. Facts and scientific reasoning will demonstrate arguments which are raised in the research. In addition, the dissertation will serve as a helpful reference document for researchers, trainers and policy makers to help respond to requirements by the economy and international integration. 8. Research structure The dissertation is structured into 4 chapters made up of 15 sections in addition to the introduction, conclusion and references. RESEARCH CONTENTS Chapter 1 LITERATURE REVIEW Chapter 1 is aimed for review and assessment of relevant international and domestic research works to further find out and resolve remaining problems. Towards that end, the dissertation has adopted an approach to study issues in groups, sort them into order: theory, reality and solutions to the improvement of the legal framework relevant to enterprises’ right to equal treatment. 1.1. Theoretical research on enterprises’ right to equal treatment In this section, two issues are mentioned: First, research in the concept of equality, equality among businesses and the right to equality by businesses Enterprises’ right to equal treatment has not been the direct research object. However, some research works mentioned the concept of social equality which is used for reference in the dissertation. Typical research 11 12 works include: On the Social Contract b J.J. Rousseau published by Publishing House of Social – Political Theory in 2004; Capitalist and Proletarian Conception of Freedom and Equality translated by To Hong Quan in 1946; Doctoral dissertation by Vu Anh Tuan on the legal effects on ensuring social justice, and Textbook on Economic Law (2003) by the Law University of Hanoi. Secondly, research works relevant to the legal effects on ensuring enterprises’ right to equal treatment No research works have been reported to mention the role of the law on ensuring enterprises’ right to equal treatment. However, the role of the law has been analyzed in theoretical terms in the Textbook of State and Law (2003) by the Law University. Author Vu Anh Tuan refers to the role of the law in general to analyze the law on ensuring social equality. 1.2. Research in the reality of existing legislations and law enforcement on enterprises’ right to equal treatment In this section, two issues are mentioned: Research in the reality of existing legislations on enterprises’ right to equal treatment Many research works have been conducted into existing legislations providing for various aspects relevant to enterprises’ right to equal treatment: “Comments on the Law on Enterprises (unified)” by Assoc. Prof. Dr. Nguyen Nhu Phat; "Investment Law 2005 – Some adequacies” by MA. Dao Trung Kien; colloquium speech “Assessment of land policies and recommendations on calling for foreign investment in the current time” by Dr. Pham Tuan Khai; "Improvement of legislations on partnerships in Vietnam” by Dr. Vu Dang Hai Yen,.. All research works share the same idea by Dr. Nguyen Chi Thanh raised in the book Business Environment – Theoretical and practical issues, arguing that “Although the legal framework to establish an environment for equal competition has been set up, the enforcement in reality still contains unresolved problems. State monopoly and special privileges afforded to SOEs have all distorted the playing field of enterprises". Research in the inequality among enterprises arising from law enforcement International and domestic analysis has been made on the inequality among enterprises. Colloquium discussion “Inadequacies and requirements for development and state management of enterprises regardless of economic sector” by Dr. Nguyen Minh Phong in the seminar on "Renovation of state management over enterprises regardless of ownership” argues that there exists bias in terms of economic sectors and bias against the private sector. In this seminar, in his speech “Renovation of state management and enabling an environment for equal competition among enterprises” Dr. Nguyen Ke Tuan raises comments as follows “In the market economy, enabling an facilitative environment for equal competition among businesses of different economic sectors is regarded as one of top priorities of the state in economic management”. However, in reality the state treats enterprises of different sectors differently. In addition, the research "Renovation of state management over businesses of various types in Vietnam regardless of economic sector” by Dr. Tran Tien Cuong as well as other international research works have mentioned the inequality among enterprises. Such international research works include "The Private Sector in Development "; "From State To Market: A Survey of Empirical Studies on Privatization " by Will L. Meggison and Jeffry M. Netter,… 1.3. Research works that provide solutions to ensuring enterprises’ right to equal treatment To various extents, many research works have assessed the nature, scope and severity of inequality among enterprises and raised solutions to addressing certain aspects of enterprises’ right to equal treatment. Typical works include: colloquium discussion by Dr. Nguyen Minh Phong; Thematic topic "Renovation of state management over các enterprises regardless of economic sector” by Dr. Tran Tien Cuong; “Beyond individual success stories: Promoting entrepreneurship though institutional reform"; "Competition, Corporate Governance, and Regulation in Central Asia'' by Harry G. Broadman; "Corporate Governance of Public Enterprises in 13 14 Transitional Economies" by Dominiquer Pannier and other relevant documents originated from OECD such as: "OECD Corporate Governance Working Papers, No. 1", on the issue of "Competitive Neutrality and State- Owned Enterprises: Challenges and Policy Options ", by Capobianco, A. and H. Christiansen,… 1.4. General assessment of research works relevant to the dissertation issues 1.4.1. Resolved issues to be learnt by the author First, there exist various forms of inequality among enterprises in Vietnam and in the world. Secondly, many factors are blamed for the inequality among enterprises, including an underlying cause, i.e. discriminatory legislations on enterprises and law enforcement officers not abiding by the law. Thirdly, ensuring enterprises’ right to equal treatment is a principle of the market economy. Fourthly, in many cases state intervention into the market with aims to address market failure may result in inequality among enterprises. Fifthly, SOE reform should be promoted to eliminate preferential treatment and privileges afforded to SOEs. There should be relevant mechanism to control monopoly enterprises. Sixthly, there exists a relation between corruption and discriminatory treatment on enterprises in many countries, including Vietnam. Seventhly, priority and exemption, in certain cases, may be afforded to enterprises entrusted with operation of services of national interests. 1.4.2. Unresolved issues by relevant research works First, most aforesaid research works are limited to addressing the inequality between SOEs and private enterprises, between domestic and FDI enterprises. They fail to address the inequality among various types of business entities. There exists inequality among enterprises under the same ownership or between domestic enterprises or FDI enterprises. Secondly, relevant research works are limited to mentioning certain aspects of inequality among enterprises without providing a comprehensive view to reflect true nature of inequality among enterprises. Thirdly, relevant research works tend to reflect the reality without finding out the underlying causes of inequality among enterprises and causes for the existence of discriminatory legislations. Fourthly, relevant research works have not mentioned the effects caused by inequality among enterprises on the economy and society as a way to recognize the significance for ensuring enterprises’ right to equal treatment. Fifthly, no research works have clarified the nature, concept, characteristics and assessment criteria of equality among enterprises and enterprises’ right to equal treatment. Sixthly, no research works have raised directions and comprehensive solutions to ensuring enterprises’ right to equal treatment. 1.4.3. Issues to be further addressed by the dissertation - The dissertation will clarify the nature of equality and enterprises’ right to equal treatment to form a basis to assess the significance for ensuring enterprises’ right to equal treatment; - The dissertation will provide research and assessment of legal effects on ensuring enterprises’ right to equal treatment and elements that govern enterprises’ right to equal treatment; - The dissertation will provide research and assessment of the reality of the existing legal system and law enforcement relevant to enterprises’ right to equal treatment in Vietnam, identify causes and effects of inequality among enterprises in Vietnam; - The dissertation will provide research and solutions to the improvement of the legal system relevant to enterprises’ right to equal treatment in Vietnam. 15 16 Chapter 2 THEORY ON ENTERPRISES’ RIGHT TO EQUAL TREATMENT Chapter 2 is aimed to address the general theoretical issue of the right to equality by businesses. Towards that end, the chapter is focused on the following matters: 2.1. Concept of equality among businesses In this section, the dissertation is focused on three issues: 2.1.1. Concept of equality There exist different concepts of the emergence and rationale for the existence of equality. The dissertation makes an approach to equality in different perspectives: political, linguistic and sociological, whereby forming general statements. Influenced by different socio-economic conditions, researchers have different views on the causes for the emergence and rationale for the existence of social inequality and equality. However, their views are getting improved towards further clarification of issue of social equality. Equality and justice are not exactly the same. Equality is a broader concept and encompasses justice. Social justice is a precondition for social equality. In terms of meaning, social justice means corresponding status and role, not equal positions or proportional correlation between rights and obligations. Meanwhile social equality both ensures the proportionality between rights and obligations and equal treatment among different entities. To clarify the nature of equality, it is necessary to subject this concept to systematic analysis. In terms of content, the concept of equality is developed from the concepts of evenness and justice in the following level: Evenness: Social entities are subject to even interests and obligations in mathematical terms (absolute evenness). Justice: Social entities are treated relevantly. This relevancy means proportionality between social obligations, i.e contribution to the society, and interests, i.e. benefit from the society. Equality: Social entities are treated on equal terms without exception. That means all entities, in the same condition and context, are subject to the same rights and obligations. By contrast, in different condition and context, they are treated differently in accordance with the principle of proportionality between right and obligation, without discrimination. Given such analysis, equality is a concept that refers to social relations assuming following characteristics: First, equality expresses the proportionality between rights and obligations. Secondly, equality requires equal treatment to all entities that are under the same condition, without exception. Thirdly, equality is a concept with relativity nature (it reflects social conceptions in particular stages, measuring the rights and obligations in social relations. It is not an absolute concept). 2.1.2. Concept of equality among enterprises The term equality among enterprises is defined to be limited to the business circle, not to include (cover) other social entities. Equality among enterprises is not exactly the same as equality in certain business operations. Instead, it is the equality throughout the life cycle of an enterprise, i.e. equality in business registration, business operation and dissolution or bankruptcy. In terms of content, equality among enterprises does not mean that all enterprises are subject to the same rights and obligations in any conditions but that in the same conditions they are treated the same. In the context where different entities contribute at different levels and have different effects on the society, equality among enterprises means proportionality between rights and obligations. Therefore, equality among enterprises is interpreted as all businesses, in the same condition, being subject to the same rights and obligations. Equality among enterprises is identified with two criteria as follows: First, proportionality between rights and obligations afforded to enterprises. Secondly, non-exemptibility. Any businesses enjoying the same condition are subject to the same rights and obligations. 17 18 2.1.3. Characteristics of equality among enterprises Like social equality, equality among enterprises denotes a social conception and governed by certain socio-economic conditions. Therefore, equality among enterprises is characterized as: (i) not being the same as equality in business, (ii) universality (equality at any time, anywhere, and in any relation); and (iii) relativity nature. 2.2. Concept of enterprises’ right to equal treatment Characterized by the operation for profit, enterprises should be subjected to healthy competition in accordance with the market law. Fair competition induces enterprises to rely on their own capacity to run business. Business operation has multiplying effects: not only on the enterprise itself but also on other entities. The state benefits from profitable business operation by taxes. Laborers benefit by being employed. Consumers benefit in that their demands are met with high quality and cheap commodities and services. Therefore, in a society where enterprises are operating, other social entities advocate enterprises’ right to equal treatment to serve their own interests. However, public opinions only can not bring about equality for enterprises at anytime, anywhere. Therefore, enterprises’ right to equal treatment should be recognized and protected by the state and laws. Once recognized, enterprises have the right to operate in accordance with the law and request their rights to be respected by other social entities. Components of enterprises’ right to equal treatment: Enterprises’ right to equal treatment is judged and recognized by the society and the State by means of law. Enterprises’ right to equal treatment includes following components: (i) Equality in business registration (in terms of procedure, condition, time…); (ii) Equality in business operation: access to capital, land, natural resources, labor, contract settlement, and dispute settlement; (iii) Equality in the dissolution and bankruptcy: procedure, condition, time… 2.3. Significance of enterprises’ right to equal treatment Enabling the right to equal treatment is essential for enterprises to operate in accordance with the law of free business and fair competition. In social and economic terms, enabling enterprises’ right to equal treatment will: (i) help form a healthy competition environment; (ii) facilitate enterprises autonomy; (iii) promote economic development and (iv) help enterprises’ capacity be truly assessed by the society. 2.4. The role of the law on equality among enterprises 2.4.1. Concept of the law on equality among enterprises The law on equality among enterprises in Vietnam does not exist as an independent institution but is present in many legislations. The law on equality among enterprises is the combination of legislations that regulate enterprises’ operation in accordance with the principle of equal right and obligation among all enterprises. Contribution is proportional to benefit and violation is proportional to liability. Contents of the law on equality among enterprises include: - Regulations on the principle for ensuring the right to equal treatment among enterprises; - Regulations on the scope in which the right to equal treatment among enterprises is ensured: equality is ensure throughout the process of establishment, operation (after establishment) and dissolution, bankruptcy and withdrawal from the market; - Regulations on equal sanctions on violating enterprises (the same sanction is imposed on the same violation without prejudice against private enterprises or in favor of SOEs); - Regulations on equal measures that can be used by enterprises to protect their own legitimate right and interest (court, arbitration, solicitor or self defense); In addition, the law on equality among enterprises includes regulations that settle common requirements for ensuring the right to equal treatment among enterprises as well as justice in economic development and support to SMEs,… 19 20 2.4.2. Legal effects on ensuring enterprises’ right to equal treatment The role of the law in ensuring enterprises’ right to equal treatment is seen from two perspectives: Law as a tool to recognize enterprises’ right to equal treatment and as a tool to provide for means to ensure enterprises’ right to equal treatment. 2.5. Factors that govern the legal system and law enforcement relevant to enterprises’ right to equal treatment Whether enterprises’ right to equal treatment is exercisable or not rests with many factors. However, identifying factors that govern the legal system and law enforcement relevant to enterprises’ right to equal treatment will act as a basis to analyze the reality and find out causes, whereby realistic solutions can be raised. 2.5.1. Factors that govern the legal system relevant to enterprises’ right to equal treatment Development of legislations on enterprises’ right to equal treatment is governed by both objective and subjective factors. Major factors that govern enterprises’ right to equal treatment include: (i) Characteristics of the economy; (ii) Economic development level; (iii) The level of international integration and (iv) The qualifications of businesspeople. 2.5.2. Factors that govern law enforcement relevant to enterprises’ right to equal treatment Law enforcement is human activity. How legislations on enterprises’ right to equal treatment are enforced rests with factors that can govern the behavior of executive agencies (enterprises, management agencies, enterprises association…). Major factors that govern law enforcement relevant to enterprises’ right to equal treatment include (i) Capacity of public officials in charge of state management; (ii) Service ethics acquired by public officials in charge of state management; (iii) Sense of responsibility by enterprises in upholding enterprises’ right to equal treatment and (iv) Participation by organizations, individuals and the society in safeguarding enterprises’ right to equal treatment. Chapter 3 EXISTING LEGAL FRAMEWORK AND LAW ENFORCEMENT RELEVANT TO ENTERPRISES’ RIGHT TO EQUAL TREATMENT IN VIETNAM Chapter 3 is focused on the analysis and assessment of applicable legislations and law enforcement relevant to enterprises’ right to equal treatment in Vietnam, whereby detecting problems as well as causes and effects of inequality among enterprises. 3.1. Existing legal framework relevant to enterprises’ right to equal treatment in Vietnam The dissertation reviews the legal system of Vietnam providing for enterprises’ right to equal treatment from the VI Party Congress. Legislations governing enterprises’ right to equal treatment in Vietnam include: Constitution (1992) and revised Constitution in 2013, Law on Enterprises (1999), Competition Law (2004), Law on Enterprises (2005), Investment Law (2005), Commerce law (2005), Bankruptcy Law (2004), specialized laws and by-laws. Upon general review of the legal system, the dissertation assesses existing legislations on enterprises’ right to equal treatment from two perspectives: strengths and weaknesses. 3.1.1. Strengths of existing legislations on enterprises’ right to equal treatment In this section, the dissertation restates the Party’s guidelines on developing the market economy and creating an equal competition environment among business entities. These guidelines have been institutionalized by the State. Noteworthy strengths of the legal system are expressed in the following terms: + Existing legislations provide for basic principles of enterprises’ right to equal treatment. + Existing legislations provide for basic components of enterprises’ right to equal treatment. 21 22 + Existing legislations provide for priorities and exemption in lines with principles of equality among enterprises. 3.1.2. Weaknesses of existing legislations on enterprises’ right to equal treatment In addition to strengths, the existing legal system still contains some weaknesses: + Legislations give inconsistent provisions for enterprises’ right to equal treatment. + Legislations on enterprises’ right to equal treatment have not been compatible with the reality of economic development. + Legislations on enterprises’ right to equal treatment have not been transparent. + Legislations on enterprises’ right to equal treatment have not been aligned with international commitment. 3.2. Law enforcement relevant to enterprises’ right to equal treatment To ensure impartial assessment of law enforcement relevant to enterprises’ right to equal treatment, the dissertation has raised both strengths and weaknesses in this respect. 3.2.1. Strengths in law enforcement relevant to enterprises’ right to equal treatment Research findings show that all types of enterprise have benefited from business registration, market surveillance, competition management, and investigation, prosecution and trial by judicial organs. 3.2.2. Weaknesses in law enforcement relevant to enterprises’ right to equal treatment In addition to strengths, law enforcement relevant to enterprises’ right to equal treatment still contains many weaknesses in many aspects: + Violation of enterprises’ right to equal treatment tends to worsen. + Violation of enterprises’ right to equal treatment tends to become more diverse in form. 3.3. Causes for inequality among enterprises in Vietnam Analysis of the legal framework and law enforcement relevant to enterprises’ right to equal treatment has revealed many causes for inequality among enterprises. However, underlying causes include: + Existing legislations have not fully reflected enterprises’ right to equal treatment + Public officials have not acquired proper capacity and service ethics to be able to ensure enterprises’ right to equal treatment. + Corporate culture has not been formed. + Poor coordination among management agencies and between individuals, mass organizations and management agencies to ensure enterprises’ right to equal treatment. 3.4. Effects of inequality among enterprises Inequality among enterprises manifests a negative phenomenon of the economy and has socio-economic effects to different extents. Assessment of the effects of inequality among enterprises may vary according to different research objectives. The dissertation will assess the effects of inequality among enterprises on the enterprises and economy as well as external relations of Vietnam. 3.4.1. Effects on the enterprises In an unequal competition environment, some enterprises win while others lose. In the long run, however, they will all be faced with disadvantages. For prioritized or subsidized enterprises (mainly SOEs), they will become more reliant on the state and less self-autonomous, less innovative and less competitive. When a legally operating enterprise is not enabled to compete in a healthy way, it will become corruptible, ready to give bribe to lobby for policies conducive for it. 3.4.2. Effects on the economy In an unequal competition environment, the economy is distorted, exposing itself to high risk. Unequal competition environment may hinder capital attraction and retard economic development. 23 24 3.4.3. Effects on external relations With respect to external relations, countries that nurture an unequal competition environment and discriminatory policies will be called to account once they are subject to anti-dumping examination. At the same time, business inequality may stain the country’s image in foreign investors’ eyes. Chapter 4 SOLUTIONS TO IMPROVING ENTERPRISES’ RIGHT TO EQUAL TREATMENT IN VIETNAM Together with business freedom, ensured equality among enterprises is a precondition for a healthy competition environment. Therefore, it is necessary to develop and improve the legal framework relevant to enterprises’ right to equal treatment to respond to economic requirements and international integration. Chapter 4 is aimed to address two basic issues: First, to further clarify the contents of enterprises’ right to equal treatment; Secondly, to improve the institutions to ensure enterprises’ right to equal treatment; 4.1. To further clarify the contents of enterprises’ right to equal treatment To further improve the legal framework relevant to enterprises’ right to equal treatment in Vietnam towards: revising incomplete legislations and restraints on enterprises’ right to equal treatment, eliminating legislation of discriminatory nature to enterprises. To do this, the law must be developed: (i) to reflect the nature of equality among enterprises and enterprises’ right to equal treatment ; (ii) set clear limit to priorities and exemptions; (iii) clearly define monopoly and renovate SOE management mechanisms in lines with the principles of equal competition. 4.1.1. The law must reflect the nature of enterprises’ right to equal treatment + Revising legislations to define the nature and concept of enterprises’ right to equal treatment in a clearer manner. To make this right a universal principle, the dissertation recommends amendment to Article 8 of the Law on Enterprises to include following provision: Enterprises are equal before the law. + Make priority policies as applied to enterprises more transparent. Priority or restraint policies adopted by a state may vary according to their strategies and targets of socio-economic development. These policies may be developed to respond to the need for economic stimulus or economic restructuring. However, priority and restraint measures must be closely associated with certain fields or areas, and aimed to address pressing demand of the economy (economic stimulus). In other words, priorities or restraints should not be imposed on particular enterprises to conflict with enterprises’ right to equal treatment and the law of competition. 4.1.2. Improving legislations on SOEs to ensure enterprises’ right to equal treatment SOE is a profit-making entity set up by and working for the state, subject to state management. Inequality between SOEs and other types of enterprise is caused by privileges afforded by the state to SOEs. Therefore, the role of macro state regulation should be distinguished from ownership. In addition, ownership of SOEs should be restructured by means of corporatization. Some monopolistic SOEs should be subjected to strict price control. 4.1.3. Eliminating legislations of discriminatory nature to enterprises Given the existing weakness in applicable legislations, the improvement of the legal framework relevant to enterprises’ right to equal treatment should: (i) eliminate registration procedures of discriminatory nature; (ii) revise some regulations on access to resources (land, capital…), contract signature, dispute settlement, tax policies and (iii) revise regulations on dissolution and bankruptcy. 4.2. Improving the institutions to ensure enterprises’ right to equal treatment Weaknesses of the management apparatus and managers, poor coordination and distribution in management, and lenient sanctions can 25 26 render the enforcement of relevant laws ineffective. Therefore, in addition to law improvement, complete solutions are needed to improve managerial agencies and strengthen managers’ capacity and service ethics. These actions should be carried out in combination with strict sanctions against violation of enterprises’ right to equal treatment. 4.2.1. Improving the apparatus in charge of management and protection of enterprises’ right to equal treatment There exist many agencies to govern enterprises’ right to equal treatment. However, three of them are faced with weaknesses and need improving to be able to undertake the mission of management and control over enterprises: (i) Business registration agency; (ii) Competition management agency and (iii) Market surveillance agency. 4.2.2. Strengthening the capacity and service ethics for public officials in charge of enterprise management and market surveillance Strengthening the capacity and service ethics is necessary for all activities of state management. However, to deal with sentimental decision making that prioritizes SOEs and discriminates against private enterprises, it is necessary to further clarify the nature and significance of enterprises’ right to equal treatment so that managers will take into account enterprises’ right to equal treatment when making decision. 4.2.3. Providing for strict sanctions against violation of enterprises’ right to equal treatment Lenient sanctions and lax laws will give rise to illegal acts such as smuggling, corruption, bribery, counterfeit production, limited competition… In that context, strict sanctions are needed to exert the full deterrent effects on enterprises, associations and state management agencies. These sanctions should be specified against particular acts such as illegal trading, bribery, corruption… The enforceability and effectiveness of laws should be taken into account in the formulation of legislations. Provisions that have discouraging effects on complaining and denunciation should be avoided and replaced by the encouraging ones. 4.2.4. Promoting the combat against corruption Corruption that causes investment distortion in enterprises can result from various sources. Public officials commit corrupt acts by taking bribe or soliciting for money while enterprises induce corruption by giving bribe. Enterprises give bribe for various reasons: to avoid harassment, to settle problems, to lobby for policies conducive to them, or to evade the liability. In both cases, the enterprise is blamed for corrupting public officials by giving them incentives to become corrupt. Therefore, the combat against corruption should start with having enterprises’ behavior changed. First of all, such corporate culture should be built so that enterprises say no to corruption. At the same time, actions should be taken to influence the audience prone to corruption by means of education and communication about service ethics. Moreover, public officials should be held accountable. Indirect measures such as involving the entire society in the combat against corruption are needed. CONCLUSION Competition is essence of the market economy, acting to boost the productivity of enterprises and the economy. The rationale for competition is that all business entities are entitled to free operation and equality. However, the state neither always acquires full awareness of the significance for equal competition nor is always capable of formulating a legal framework to protect enterprises’ right to equal treatment. During the course of developing a socialist - oriented market economy in Vietnam, the state has afforded SOEs too many priorities and subsidies in form of access to capital, land and natural resources and used them as a tool for macro economic regulation. Other problems such as discrimination in favor of domestic businesses and against FDI enterprises, counterfeit trading, smuggling, bribery and corruption to lobby, have given rise to severe inequality among enterprises. This is in contravention of the law of competition and results in both theoretical and practical problems in the formulation and improvement of the 27 28 socialist - oriented market economy in Vietnam. In addition, inequality among enterprises in Vietnam has given rise to WTO and TPP members’ concern. Therefore, the dissertation improving legislations to promote enterprises’ right to equal treatment in Vietnam is focused on addressing theoretical issues and assessing the existing legal framework and the enforcement of laws relevant to enterprises’ right to equal treatment. It is aimed to raise solutions as a response to demands by the market and economy. The dissertation has raised basic theoretical issues on equality, equality among enterprises and enterprises’ right to equal treatment. On that basis, the dissertation has clarified the nature and significance for ensuring enterprises’ right to equal treatment as well as the role of the law and other factors that govern enterprises’ right to equal treatment. By referring to criteria of equality among enterprises and enterprises’ right to equal treatment as developed in chapter 2 and chapter 3, the dissertation has made research into the existing legal system and the enforcement of laws relevant to enterprises’ right to equal treatment in Vietnam. In this chapter, strengths and weaknesses in relevant laws have been found to have effects on enterprises’ right to equal treatment in Vietnam. With regard to strengths, the legislations have recognized basic principles and contents of enterprises’ right to equal treatment and provided for priorities and exemptions in lines with the principle of equality among enterprises. With regard to weaknesses, the legislations have been rendered inconsistent, conflicting, less transparent and outdated by the reality and requirements for integration and development. With respect to law enforcement, management agencies have afforded all types of enterprise facilitative registration procedures and strictly handled smuggling and counterfeit trading… Particularly, acts violating economic disciplines, mainly illegal trading and bribery, have been punished strictly. However, there exist some weaknesses in the enforcement of laws relevant to enterprises’ right to equal treatment : rising corruption cases relevant to bribery for privileges, illegal trading, copyright violation… On the other hand, violation of enterprises’ right to equal treatment exists in diverse and complicated form. Having analyzed the realities and stated causes for inequality among enterprises, the dissertation comes up to effects of inequality on enterprises, the economy and external relations, whereby proposing recommendations. Recommendations for the improvement of the legal framework relevant to enterprises’ right to equal treatment are categorized into two sets: First, improving the legislations relevant to enterprises’ right to equal treatment; Secondly, improving the institutions to ensure enterprises’ right to equal treatment. Accordingly, the first set of solutions (improving the legislations relevant to enterprises’ right to equal treatment) requires resolution of three issues: (i) to amend regulations to further clarify the nature of enterprises’ right to equal treatment; (ii) to renew the policies as applied to SOEs and (iii) to eliminate discriminatory regulations as applied to enterprises. The second set of solutions (improving the institutions to ensure enterprises’ right to equal treatment) is focused on the improvement of the management apparatus, strengthening the capacity and service ethics for public enterprise managers and market surveillance officials, strictly handling acts violating enterprises’ right to equal treatment, and promoting the combat against corruption to ensure enterprises’ right to equal treatment. Ensuring enterprises’ right to equal treatment assumes significance over the improvement of the market economy. It is because enterprises are the main market players. Improved legislations relevant to enterprises’ right to equal treatment will help form an environment for equal competition among most market players, including individual businesses and other business entities. However, this issue has not been addressed adequately to ensure the equality among business entities in case of bankruptcy. Accordingly, bankrupt enterprises are regulated by the Bankruptcy Law relevant to debt payment while individual businesses are not. Is this discrimination justifiable or whether not equality among business entities should be subjected to further research are the questions to be answered in future study.